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Luce v. State of New York6/17/1998
Miscellaneous Reports
COURT OF CLAIMS
ORDER
Defendant's motion seeks an order permitting defense counsel to interview and prepare all State employees involved in the care and treatment of Frank J. Luce, Jr. outside the presence of Mr. Luce, his family, his counsel, or any others not of defendant's choosing, through the conclusion of all legal proceedings against the defendant.
The claim arose March 29, 1991 at Gowanda Psychiatric Center (GPC) when Frank J. Luce, Jr., an involuntary patient, attempted suicide by hanging himself with a lace from one of his sneakers. Although the attempt failed, Mr. Luce suffered serious injuries as a result of the incident. The trial was bifurcated, and a decision filed October 31, 1997 determined that the State of New York was fully responsible for Mr. Luce's injuries. The case is now being prepared for trial on the question of damages.
At present, Mr. Luce is still in a State facility and is under the care of the same psychiatrist who was treating him at the time of the suicide attempt. In informal Discussions, claimant's counsel made known to defense counsel his objections to the State's having unfettered access to Mr. Luce's treating physicians, psychologists, social workers, nurses and other health care personnel in preparing for the damages trial. Claimant's counsel also expressed his objection to any private interviews with such personnel in preparation for scheduled examinations before trial. In response, defense counsel brought on the instant motion by order to show cause. It is defense counsel's position that claimant has waived the physician-patient privilege by virtue of having brought this lawsuit (see Koump v Smith, 25 NY2d 287), and that the State would be unfairly restricted should private interviews be prohibited because the personnel in question are State employees for whose acts defendant is responsible, rather than independent third parties.
The Court has reviewed the authorities cited by counsel, in particular, Stoller v Moo Young Jun, 118 AD2d 637; Cwick v City of Rochester, 54 AD2d 1078; Fedell v Wierzbieniec, 127 Misc 2d 124, affd 116 AD2d 990; and Anker v Brodnitz, 98 Misc 2d 148, affd 73 AD2d 589, lv dismissed 51 NY2d 743. The Court has also taken into consideration the statutory scheme set forth in Mental Hygiene Law section 33.13 for protecting the confidentiality of records of the mentally disabled.
Cwick v City of Rochester, 54 AD2d 1078, supra, concluded that there was no authority to "interview" a medical witness under the rules of the Fourth Department or under CPLR article 31, and that ample disclosure devices are available under article 31 to obtain whatever information is properly obtainable by a defendant.
Anker v Brodnitz, 98 Misc 2d 148, supra, observed that Koump v Smith, 25 NY2d 287, supra, did not expressly deal with questions such as by what procedures other than formal ones, if any, and subject to whose control shall medical information be exchanged after the privilege has been waived by the commencement of a lawsuit. The Court concluded that "the better rule denies defendant the right to question plaintiff's doctors outside formal discovery procedures" (98 Misc 2d at 151), focusing on the need to protect the physician-patient relationship, which is the very purpose of the physician-patient privilege. See Zimmerman v Jamaica Hosp., 143 AD2d 86, 88, lv denied 73 NY2d 702. (In the instant case, as in the cases involving third-party physicians, the patient is still under treatment with the very person or persons whose cooperation is being sought by defense counsel.) But see Nielsen v Apisson, 138 Misc 2d 74 (holding that a private interv
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